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Beit Midrash Series Bemare Habazak - Rabbis Questions

Chapter 369

Kedushat Beit Knesset of a Rented Building

Clients of mine want to rent out a building that has served for a family business to a religious group, who will use part of it as a shul. They are concerned that if things do not work out, they will get back control of the building with some of it having the restrictions of a shul, which would restrict their use of it. Is this a problem, and if so what can be done to obviate the problem?
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Question: Clients of mine want to rent out a building that has served for a family business to a religious group, who will use part of it as a shul. They are concerned that if things do not work out, they will get back control of the building with some of it having the restrictions of a shul, which would restrict their use of it. Is this a problem, and if so what can be done to obviate the problem?
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Answer: [The laws of removing kedusha from a shul are very complicated, and therefore we ask our readers not to extrapolate too freely.] The Shulchan Aruch (Orach Chayim 154:2) rules that a structure that is used as a shul but is not owned by the congregation but is just rented to it does not have the halachot of a beit knesset.

This important source does not totally remove the question. First, the Bi’ur Halacha (ad loc.) cites those who limit the scope of this rule for the following reason. The Shulchan Aruch is based (as is evident from the Beit Yosef, OC 154) on Mahari ibn Chaviv who says that certain normal prohibitions surrounding a beit knesset do not apply to the shuls in Turkey of his time. He explains that because the authorities could take them away at any time, anything that was done there was temporary and the halachic status is therefore missing. The Mahari ibn Chaviv’s does not require the shul to be the highest building in town and allows living above the shul as long as one does "clean things" there. He describes the situation as one of total insecurity as far as where Jews could live, so that the situation was very temporary. Some Acharonim claim, says the Bi’ur Halacha, that if a congregation has a reliable mid-term or long-term lease, then the laws of a beit knesset do exist. Also, even according to the Mahari ibn Chaviv, one is not allowed to use it for "dirty things."

Yet, there are significant reasons to say that your client would not have to worry about these reservations about the leniency of rental. First, it is quite clear from the Shulchan Aruch’s language that he learned the Mahari ibn Chaviv broadly. Secondly, the Mahari ibn Chaviv and the early Acharonim who question or limit his ruling (see Mor U’ktzi’a 154:1; Maharit II, Yoreh Deah 4) are referring to the status during the time that it is still being rented and used as a shul. Some (see Mor U’ktzi’a ibid.) invoke the idea, as reason for chumra, that during the time it is rented, it is as if it is owned by the renter. However, regarding many halachot, if a renter does something to property while it is his, including sanctifying it for Beit Hamikdash use, once the rental is over that status ceases to be in effect (see Tosafot, Arachin 21a). Indeed, the Maharit (II, Yoreh Deah 4) says that the fact that it is a rental is enough to have the kedusha cease when the shul is no longer used, even though when it is in use it is to be treated with the rules of a shul.

However, these indications do not remove all liability according to all opinions. The Maharsham (III:206) says that even though the end of the rental period removes the main status of beit knesset, it still remains forbidden to use the beit knesset section for disgraceful uses. The Maharit (ibid.) seems to treat the end of the rental as equivalent to one who made a condition that the shul should not become holy. Not only does the condition work only after it is no longer used (Shulchan Aruch, OC 151:11), but it also does not make it permitted to use for disgraceful matters (ibid.). On the other hand, one might argue for more leniency because the original purpose of the building was not for a shul (see Rama, OC 151:12).
In summary, if the rental fell through before the building was actually used as a shul, there is no problem (Shulchan Aruch, OC 153:8). Once it will be properly used as a shul, upon receiving it back, they could use it for most commercial purposes, but at least some authorities would demand that it not be for degrading matters. If your clients were then to sell it to someone else, almost all limitations would fall off (see ibid. 9)
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